Pistorius Trial: Week 11, Day One

Rebecca Davis

Rebecca Davis

Rebecca Davis studied at Rhodes University and Oxford before working in lexicography at the Oxford English Dictionary. After deciding she’d rather make up words than define them, she returned to South Africa in 2011 to write for the Daily Maverick, which has been a magnificilious decision.

Life, etc

07 Jul 2014 09:05 (South Africa)

It’s the 38th day of the Oscar Pistorius murder trial, and it may be an interesting one. On Sunday, Australian broadcaster The Seven Network aired footage of Pistorius re-enacting his movements on the night of Reeva Steenkamp’s shooting, aided by sister Aimee. Pistorius’s legal team has described the broadcast as a “staggering breach of trust”, while the TV network denies that the footage was obtained illegally. Which legal team will be out of the starting blocks first on this matter – or will Judge Masipa pre-empt any mention of it at all? By REBECCA DAVIS.

09.00 Good morning, trial-watchers. Not much that is Pistorius trial-related normally happens on a weekend, but this one was an exception, due to the actions of the Australian broadcaster which aired the footage that has everyone talking. In it, the athlete can be seen on his stumps with his hand stretched out in front of him as if holding a weapon, while he moved across a room in his Uncle Arnold Pistorius’s house. Sister Aimee Pistorius stands in for Reeva Steenkamp, posing immobile while Pistorius lifts her up and carries her downstairs.

Channel 7 aired the footage as part of an hour-long programme which also featured interviews with Reeva Steenkamp’s parents June and Barry. During the show, Australian TV viewers were invited to answer a poll as to whether they thought Pistorius killed Steenkamp deliberately, with 51% agreeing.

We now know that the re-enactment footage was prepared by US company The Evidence Room, which specializes in forensic preparation for trial. Just before the Pistorius trial kicked off in March, TIME explained:

[CEO Scott] Roder founded the business in 2003 after successfully using animations in court to demonstrate shootings. His work caught on as more and more lawyers preferred pressing play on a video to wasting time trying to explain a crime scene themselves. “It became very effective to have these animations,” says Roder. “Now we’re sitting in 2014 and it’s very routine to bring in an animation for a legal proceeding.” Today, Roder says he works on 100 cases a year across the world, sometimes charging upwards of over $10,000 a video. With one month to go before the Pistorius trial begins, it’s a tense time for Roder, a father of two. “Things are just so busy now,” he says, “it’s hard to get off task and talk about things.”

It appears that the footage was sold to the Australian broadcaster. Pistorius’s lawyer Brian Webber put out a statement on Sunday declaring that the material “was obtained illegally and in breach of the non-disclosure agreement with The Evidence Room”. But the statement was slightly confusing, because it seemed to suggest that Pistorius’s defence had been aware that the broadcaster had the footage:

“It has come to our attention that Channel 7 purchased this footage unlawfully,” Webber wrote. “In addition, during our engagement with Channel 7, we received an undertaking that they would not air any of the material before the end of the trial”.

The Seven Network denies knowledge any illegality, while not explaining how it obtained the footage. “We would not have run the footage is we thought we had obtained it illegally,” their statement read. “The story was run in Australia only and not made available to any other territory.”

Pistorius’s defence team said that they “cannot imagine how any of the footage would not support Oscar’s version”. But there has been some suggestion already that the footage appears to show Pistorius having a greater degree of mobility on his stumps than has been claimed during the court proceedings. If so, the state’s Gerrie Nel may want to quiz expert witness Wayne Derman, a Sports Medicine professor who is still on the stand, about the footage.

But will he get the chance? Legal experts have suggested that the either the defence’s Barry Roux, or Judge Masipa herself, may beat him to it in bringing the matter up this morning. It’s another headache for Masipa in a trial that has attracted unprecedented media attention.

11.15 A slightly early tea-break in the Pistorius trial this morning, where any expectations that the court would deal with that video have thus far come to naught. There has been absolutely no explicit mention of the Australian broadcast yet. Wits Law Professor James Grant (@CriminalLawZA) tweeted a possible reason: “If leaked vid was created for purposes of obtaining legal advice in respect of pending litigation, it is privileged and cannot be presented”.

A legal analyst for CNN, meanwhile, said that it appeared at various points this morning that the state’s Gerrie Nel was attempting to “bait” witness Wayne Derman into bringing up the video of his own volition – in which case Nel could apparently request the video be admitted. If that is indeed Nel’s tactic, it hasn’t worked thus far.

Judge Masipa did kick off the day with another procedural issue, however, confirming that she has amended her court order with regards to the publication of Pistorius’s mental evaluation. Media lawyers and defence lawyers came to an agreement late last week about the portions of the report that could indeed be published and reported on, which is why City Press could publish the redacted reports online this weekend.

The Nel-Derman showdown has been typically prickly so far this morning, with attempts at sarcasm from both side. Nel has been continuing his cross-examination in a similar vein to last week, suggesting that Derman has overreached his expertise in giving evidence and cannot be considered objective because of his relationship with Pistorius as his physician. Derman responded today that he believes he is “as objective as he can be”.

Nel also suggested that Derman was not qualified to interpret Pistorius’s psychologist’s report in the way he did in court last week. Derman previously said that Dr Jonathan Scholtz’s report on Pistorius revealed that the athlete scored 70 for anxiety, which was on the border of tipping into a sufficiently high score to be classed as an anxiety disorder.

Nel disputed that the 70 mark was high, saying that the state’s psychologist Dr Carla Kotze begged to differ. Derman said that he would cede to Kotze’s superior expertise in this matter, but that the report stated that while 70 did not constitute a Generalised Anxiety Disorder, 71 would. “You don’t need to be a genius [to interpret the test scores],” Derman said.

“One don’t need to be a genius but one does need to be a psychologist,” Nel shot back, saying that the Health Professions Act stipulated that such test scores could only be interpreted by professionals in the field.

Last week Derman said that Pistorius had given him a demonstration of how he runs on his stumps, a point returned to by Nel this morning. It was here that Nel appeared to be obliquely referring to scenes from the Australian broadcast. Nel in particular was keen to know if it had ever been demonstrated to Derman that Pistorius could walk backwards on his stumps – as he apparently does in the video – and whether Derman knew that Pistorius could move without holding on to the wall – as, again, Pistorius does in the video.

Derman said that he had seen Pistorius move on his stumps a number of time, but had never seen him walk backwards and couldn’t remember if Pistorius was clutching the wall during his demonstration to Derman.

Nel asked if Derman had seen Pistorius move on his stumps with his hand lifted up (as he does in the video, to demonstrate how he was holding his gun). Derman said he had not, but that he “supposed” it would be possible, though difficult to balance.

Nel moved on. Would Derman concede that, even on Pistorius’s version of events, there was the opportunity for Pistorius to flee rather than face danger? Yes, said Derman, in the “best possible way that he is able to flee”.

Has Derman ever considered that Pistorius’s version might be a lie? “Obviously I have,” Derman replied.

Nel tried to pick holes in the research that Derman had presented to the court as evidence that disabled people are more at risk of physical attack. Nel said that the research cited by Derman dealt mainly with mental disability, rather than physical. Derman said the results still showed that disabled people generally were more susceptible to crime than able-bodied people. He admitted that there was not good data available in this regard for South Africa.

“There’s no indication of a disability hate crime in this matter,” Nel suggested. Derman agreed, but said that the point was that Pistorius was justified in feeling greater vulnerability. Nel disputed that Pistorius could really be seen as vulnerable given the wealth and security with which he lived, as well as his extensive support network. Derman strongly disagreed. Would Pistorius be less vulnerable with a gun in his hand? Possibly, Derman conceded.

14.00 We’ve concluded the day’s business in the Pistorius trial. To cut to the chase, there has still been no mention of the re-enactment video footage, though BBC journalist Andrew Harding tweeted that he had been told by a member of the defence team that the reason the video was never used in court was because it was "inaccurate".

But we have covered quite a range of other matters, with Nel taking a rather scattergun approach in the last session of his cross-examination, seemingly keen to try Derman on as many aspects as possible to see where he could gain advantage.

He returned, for instance, to the issue of why Paralympic athlete Arnu Fourie moved rooms at the 2012 Games. Derman conceded that he could not rule out the possibility that Fourie had switched rooms partly because of Pistorius’s angry phonecalls – in addition to having needed to move because Fourie had the beginnings of a respiratory infection.

We heard further grilling on the matter of the three “startles” which Derman has testified would have induced a flight or fight response from Pistorius on the night of the shooting. The first startle, Derman confirmed, was the apparent sound of the bathroom window opening; the second, the sound of the toilet door, and the third, what Pistorius told him seemed to be the sound of the magazine rack moving inside the toilet.

The third startle is the most significant, since it is this that ultimately caused Pistorius to fire (on his version of events). Nel quizzed Derman as to whether Pistorius claimed to have seen the toilet door opening. Derman said Pistorius had not.

Nel asked Derman about the paradox of someone who was apparently easily startled by noise being drawn to a hobby (shooting) where one is surrounded by loud noise. Nel made reference here to the video of Pistorius shooting watermelons at a shooting range which was broadcast by Sky News and later used by the state in court. In that video, Nel said, Pistorius did not appear to be anxious despite the loud noises.

Derman replied that sounds at a shooting range would not startle Pistorius because he would be expecting them. If Pistorius thought there was someone behind a toilet door and then he heard a noise, surely he would have expected that sound too, Nel asked. On a shooting range, one is in charge of the sounds, Derman said, though he added that it was possible that Pistorius could be startled by sounds at a shooting range if he were not expecting them.

Nel took his chance at a potshot of his own. Derman had testified that Pistorius was anxious, hyper-vigilant and so on. In that case Pistorius must be “a danger to society”, Nel smoothly suggested, since Derman’s testimony was that it was these psychological conditions that had led Pistorius to kill someone. Derman refused to play along.

Nel’s final move was to return to the issue of Pistorius’s intention when he fired at the door. (Remember that in South African criminal law, the state must only prove intention, not motive. Remember too that Pistorius steadfastly rejected any suggestion during his testimony that he had intended to shoot at someone behind the door.)

“Your evidence in no way affects his intention on the night,” Nel suggested.

“From what I understand, it was his intention to shoot,” Dermam acknowledged. Nel immediately indicated that he had no further questions, as if he had been simply waiting for that answer.

Re-questioning Derman, the defence’s Kenny Oldwadge wanted to pursue the matter of why Pistorius had chosen not to try to leave the room instead of confronting the threat. Derman replied that it did not fit with the psychology of the flight/fight response here, because Pistorius would have had the fear that the threat would run faster than him, catch him and harm him.

And that was it for Professor Wayne Derman, hailed by some trial-watchers as the defence’s star witness. As for whether Derman is indeed the defence’s final witness, we are still not sure. Barry Roux wanted to consult with state psychologist Dr Carla Kotze, who assessed Pistorius at Weskoppies, but Gerrie Nel was having absolutely none of it. Judge Masipa sided with Nel, saying that Kotze didn’t fall into the category of a normal witness – whom the defence would be entitled to consult with after the state had closed its case without calling them – and that the fact that Kotze happened to be in court did not entitle the defence to consult with her.

We wait to hear, tomorrow morning, if there’s any final cards up the defence sleeve. DM

Photo: South African Paralympic champion Oscar Pistorius draws a picture as he sits in the courtroom during day 37 of his trial at the high court in Pretoria, South Africa, 03 July 2014. EPA/HERMAN VERWEY / MEDIA 24 / POOL

Rebecca Davis studied at Rhodes University and Oxford before working in lexicography at the Oxford English Dictionary. After deciding she’d rather make up words than define them, she returned to South Africa in 2011 to write for the Daily Maverick, which has been a magnificilious decision.

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